(108 Ind. 163)

WESTERN UNION TEL. Co. v. STEELE.

(Supreme Court of Indiana. November 5, 1886.)

TELEGRAPH COMPANIES-REPEAL OF STATUTE-PENALTY.

The Indiana act of 1885, prescribing a penalty for a breach of auty by telegraph companies, repeals the previous statute upon that subject; and, under the act of 1885, the penalty cannot be recovered unless the telegraph company has been guilty of bad faith, partiality, or discrimination.

Appeal from Montgomery circuit court.

Action before a justice of the peace against a telegraph company to recover statutory penalty for breach of duty. The breach charged in the complaint is that "on the twenty-third day of May, 1885, the plaintiff delivered to the defendant's agent at Waynetown, Indiana, at the office of the defendant, at 1 o'clock of said day, a telegraph message, which said agent received, and agreed to transmit to Danville, Illinois; that the plaintiff paid all charges to said agent for the transmission of said dispatch to Danville, Illinois; that it was received by the defendant's agent at Danville, Illinois, at 3:58 o'clock of said day; that said agent at Danville, Illinois, neglected to deliver said dispatch, and did not deliver said dispatch, until May 25, 1885, at 8 o'clock A. M., more than 40 hours after the receipt by said agent; that the persons to whom said dispatch was sent resided and were engaged in business within the city limits of said town of Danville, less than one mile from defendant's office," etc.

McDonald, Butler & Mason, for appellant.

This cause must be decided under the provisions of the act of April 8, 1885, (Acts 1885, p. 151,) which expressly repeals all laws inconsistent therewith; for it covers the entire subject-matter of section 4176, Rev. St. 1881, and contains provisions inconsistent with that section. Dowdell v. State, 58 Ind. 333; Blakemore v. Dolan, 50 Ind. 207; Longlois v. Longlois, 48 Ind. 60. Partiality, bad faith, or discrimination are the only causes for which a penalty can be recovered under this act of 1885. Mere delay or negligence is not sufficient, for such statutes must be strictly construed. W. U. Tel. Co. v. Axtell, 69 Ind. 199; Same v. Mossler, 95 Ind. 29; Same v. Harding, 3 N. E. Rep. 172. The statute only requires a telegraph company to receive and transmit messages upon the "usual terms," and the complaint is also bad for failure to aver that fact. A complaint, even before a justice, must strictly comply with the penal statute on which it is based. W. U. Tel. Co. v. Mossler, 95 Ind. 29; W. U. Tel. Co. v. Axtell, supra.

Paul & Humphries, J. S. Zuck, W. E. Humphrey, and Wm. M. Reeves, for appellee.

It is not material whether section 4176, Rev. St. 1881, is repealed by the act of 1885 or not, for a good cause of action is stated under either statute. It is shown that 40 hours elapsed between the receipt of the message by the company and its delivery. This was sufficient to make a prima facie case, and throw the burden of explanation on the company. Julian v. W. U. Tel. Co., 98 Ind. 328; W. U. Tel. Co. v. Pendleton, 95 Ind. 12; W. U. Tel. Co. v. Gougar, 84 Ind. 176. The complaint, being before a justice, would have been good on demurrer, and is certainly good after verdict. W. U. Tel. Co. v. Lindley, 62 Ind. 371; W. U. Tel. Co. v. Lewelling, 58 Ind. 367; Wiles v. Lambert, 66 Ind. 494; Hammon v. Sexton, 69 Ind. 37; Galvin v. Woollen, 66 Ind. 464.

ELLIOTT, J. The appellee instituted this action to recover the penalty imposed for a breach of duty by the statute. The telegram was delivered to the appellant on the twenty-third day of May, 1885, and the statute which governs is that enacted in 1885, for that act repeals the earlier one. W. U. Tel. Co. v. Brown, 8 N. E. Rep. 171. The complaint must, therefore, be

good, under the provision of the later act. It is settled law that a penal statute must be strictly construed, and we are therefore required to confine the operation of the statute to the cases which it specifies, for we cannot extend it by construction. Acting upon this rule, we must hold that the act of 1885 does not prescribe a penalty for neglect in transmitting messages. This conclusion is, indeed, the only one that can be reached, without greatly enlarging the words of the statute; and it is strengthened by the fact that the statute which the act of 1885 repeals prescribed a penalty for a negligent breach of duty, while that of 1885 contains no such provision, thus clearly evincing the intention of the legislature not to give a penalty for a negligent breach of duty. The act of 1885 prescribes a penalty for a breach of duty only in three cases,-bad faith, partiality, discrimination; and the complaint before us shows, at most, a mere neglect of duty, and fails entirely to show bad faith, partiality, or discrimination. Judgment reversed.

(108 Ind. 225)

CARNAHAN v. HUGHES and another.

(Supreme Court of Indiana. November 6, 1886.)

1. SALE-REFUSAL OF PURCHASER TO EXECUTE NOTES AS AGREED.

Where goods are sold upon credit, the purchaser agreeing, as part of the contract, to execute notes payable at a future day for the purchase price, the seller is entitled, upon the refusal of the purchaser to execute the notes, to maintain an action therefor, and the measure of damages is the full price of the goods.

2. PRINCIPAL AND AGENT-AUTHORITY-RATIFICATION.

Where it is sought to hold a party liable on a contract for the purchase of goods made by another in his absence, it must appear that there was some relationship of partnership or agency between the parties, or that the former had afterwards ratified the contract.

3. SALE-PLAINTIFF MUST SURRENDER BENEFIT.

An action for damages for failure to execute a note for the purchase of goods according to agreement cannot be maintained where the plaintiff retains another note for the full price, which is not shown to be worthless.

Appeal from Daviess circuit court.

John Baker, for appellant. Padgett & Downing, for appellees.

MITCHELL, J. On the twenty-sixth day of June, 1883, the appellees, John and Edward Hughes, contracted, by and through Edward Hughes, with the appellant, Carnahan, for the purchase of a Champion reaper at the agreed price of $110. The reaper was delivered to and received by the purchasers. It was agreed that the purchasers should pay $37 on the first day of September, 1883, $36 September 1, 1884, and $37 on the first day of January, 1885; the deferred payments to be secured by the purchasers' notes, drawing interest at 6 per cent., from August 1, 1883, until paid, and stipulating for 5 per cent. attorney's fees. It was also agreed that the title to the property sold should remain in the seller until full payment was made, and that the purchasers should execute their notes for the respective amounts designated, which notes were to embrace the conditions and limitations above mentioned. Edward Hughes executed the notes according to the terms of the contract, and agreed that John, who was not then present, would within a reasonable time do likewise. Upon demand, John Hughes refused to sign the notes. On the fourteenth day of January, 1885, the appellant filed his complaint against John and Edward Hughes, setting out the foregoing facts, with copies of the notes signed by Edward, and alleging that the whole of the purchase price was due and unpaid, and demanding judgment. The court sustained the separate demurrer of John Hughes to the complaint, and the propriety of this ruling is the only question for consideration.

The appellees have filed no brief, and we are not advised as to the theory upon which the court proceeded in holding the complaint insufficient. It is

abundantly settled that where goods are sold upon credit, the purchaser agreeing, as part of the contract, to execute notes payable at a future day for the purchase price, the refusal of the purchaser to execute the notes according to the contract entitles the seller to maintain an action for such refusal, and the measure of damages is the full price of the goods sold. Hays v. Weatherman, 14 Ind. 341; Clodfelter v. Hulett, 72 Ind. 137, 148; Barrow v. Mullin, 21 Minn. 374; Hanna v. Mills, 21 Wend. 90; 2 Benj. Sales, par. 1127. The difficulty with the appellant's complaint, which induced the ruling below, doubtless was that it appears from the averments therein that the contract for the purchase of the reaper was made with Edward Hughes, who executed his notes for the purchase price, and who agreed, in the absence of John Hughes, that the latter would sign the notes within a reasonable time thereafter. Upon this state of facts, without more, it is not apparent how it can be claimed that John Hughes was bound. Suppose Edward Hughes, in the absence of John, did contract for and receive a reaper for both, and that he agreed that the latter would thereafter sign the notes which had been executed by Edward, it does not appear that John and Edward sustained any such relation to each other as authorized the one to bind the other by any purchase of property for him, or by an agreement made in his absence that the latter would sign notes therefor, nor does it appear that John Hughes in any manner ratified the contract, or accepted the benefits thereof, with knowledge of what had been agreed upon.

Where one person assumes to bind another in respect to the purchase of property in his absence, some relation of partnership or other agency must be shown to exist between the person contracting and the one contracted for, through which the person so assuming to contract derives authority in that behalf, either express or implied. Unless some such authority is shown to have existed, or unless it appears that the person on whose behalf an executory contract was made afterwards ratifies it upon a sufficient consideration, as by accepting its benefits with full knowledge of the facts, it creates no obligation against a person who is thus sought to be bound. The complaint fails entirely to make a case against John Hughes.

Moreover, if it had appeared that Edward Hughes was authorized to bind his co-defendant to the extent claimed, since the appellant received and retained the notes executed by one of the purchasers in discharge of the contract, it was not competent for him to maintain an action for damages for a breach of the contract to execute notes according to the agreement, without returning or offering to return the notes which he received, or without averring some sufficient excuse for not doing so. While the notes of Edward Hughes are held, he is not in default for not executing them. In the absence of anything to show that the notes, as executed and accepted, are not collectible, it is not apparent that the appellant, so long as he chooses to hold them, has suffered any injury by the refusal of John Hughes to sign them. It will be observed that, although the action was not brought until after the credit agreed upon had expired, the suit was not in assumpsit to recover the price of the goods, but, in its nature, it is an action for damages for failing to execute the notes according to the agreement. While such an action may be maintained even before the term of credit expires, it cannot be maintained while the seller of goods holds a note which he accepted, in pursuance of the contract, for credit. 2 Benj. Sales, par. 1127, and cases cited in note. Indeed, it may be doubted whether he could maintain an action on the account while holding the note of one of the debtors, without offering to surrender it, or showing that it was worthless. 1 Lindl. Partn. pp. 450, 451, and notes. The judgment is affirmed, with costs.

(108 Ind. 189)

CITY OF EVANSVILLE and others v. SUMMERS.
(Supreme Court of Indiana. November 6, 1886.)

1. STATUTES-CONSTRUCTION-RULES OF-LEGISLATIVE INTENT.

In the construction of statutes the prime object is to ascertain and carry out the intention of the legislature; and, while the letter of the statute is first to be considered, the intention may also be sought in the history of legislation on the subject, the objects contemplated, the evils to be corrected, and the remedy provided.

2. MUNICIPAL CORPORATION-CITY OF EVANSVILLE-AMENDED SECTION 58, ACTS IND. 1881, PAGE 22-PART OF COSTS OF STREET IMPROVEMENT PAYABLE OUT OF GENERAL REV

ENUE.

Amended section 58 of the special charter of the city of Evansville, (Acts Ind. 1881, p. 22) is not repealed by the act of April 13, 1885, (Acts 1885, p. 207.) and an injunction will not lie to prevent said city from paying a part of the costs of street improvements out of the general revenues of the city.

Appeal from Vanderburgh superior court.

Jas. B. Rucker, for appellants. Richardson & Walker, for appellee.

ZOLLARS, J. The city of Evansville has never adopted the general law for the incorporation of cities, but has a special charter, granted in 1847. In the fourth clause of the schedule which is annexed to and forms a part of the constitution of 1851, it is provided that "all acts of incorporation for municipal purposes shall continue in force, under this constitution, until such time as the general assembly shall, in its discretion, modify or repeal the same." That the special charter, thus granted and retained, may be amended by special or general acts, is not here questioned, and is well settled. Longworth's Ex'rs v. Common Council of Evansville, 32 Ind. 322; Warren v. City of Evansville, 106 Ind. 104; S. C. 5 N. E. Rep. 876; City of Evansville v. Bayard, 39 Ind. 450; Eichels v. Evansville St. R. Co., 78 Ind. 261; Chamberlain v. City of Evansville, 77 Ind. 542.

As amended in 1881, (Acts 1881, p. 22,) the fifty-eighth section of the special charter confers authority upon the city to improve the streets, alleys, and sidewalks, either upon petition by the abutting lot-owners, or by a vote of two-thirds of all the members of the common council, and to assess the expense and cost of such improvements upon the lots, or parts of lots, fronting, abutting, or adjoining such improved street or alley, and to enforce the collection of such assessments by a sale of the lots, in the manner provided, or by an action to enforce the lien of the assessments, etc. When the improvements are made upon contract, the contractor accepts the assessments as so much money, and enforces the collection of them by the remedies above stated. In that section there is this proviso: "Provided, further, that the city of Evansville may pay out of its treasury a half of the cost and expenses of such improvements or repairs other than sidewalks and alleys; and, in the event it elects so to do, the other half of such costs and expenses shall be assessed and charged on all lots or parts of lots abutting or adjoining, as aforesaid; and the provisions of this act, including remedies, shall govern any improvements or repairs made hereunder, whether the same be charged in whole or in part against the lots or parts of lots abutting or adjoining as aforesaid." By a general ordinance passed in May last it was ordained that thereafter the cost of street improvements, such as may be made under the foregoing amended section of the charter, should and shall be paid, one-third by the city, and twothirds by the abutters, with this proviso: "Provided, however, that the city shall pay for street intersections: and this ordinance shall not apply to sidewalk improvements, nor where the only improvement made is the grading of the street." Subsequent to the passage of the above general ordinance the common council passed an ordinance for the improvement of certain streets, and entered into a contract with the city's co-appellants herein for the doing of the work.

v.9N.E.no.1-6

Appellee instituted this action to enjoin the city authorities from paying the one-third of the cost of the improvements out of the general fund of the city. It is conceded that, under the above-mentioned section of the city charter, such payment might lawfully be made, but it is contended that that section has been superseded and repealed by a general law enacted in 1885. Acts 1885, p. 207. That contention presents the controlling question in the case. The title of the act of 1885 is: "An act concerning contracts made by order of the common council of cities for the grading and improvement of streets and alleys, providing the manner of estimating the cost thereof, and of enforcing the same against the lots and unplatted lands abutting on such streets or alleys, fixing the limitation thereof, and declaring an emergency." The act, so far as need be set out in full, is as follows: "Be it enacted * * * that in all contracts hereafter made, or which may be hereafter made, by order and under the direction of the common council of any city in this state, for the grading, paving, guttering, and improvement of any street or alley in such city, the cost of such improvements shall be estimated according to the whole length of the street or alley, or the part thereof to be improved, per running foot; and the city shall be liable to the contractor for so much thereof only as is occupied by public grounds of the city bordering thereon, and the crossing of streets and alleys; and the owners of lots bordering on such street or alley, on the part thereof to be improved, shall be liable to the contractor for their proportion of the cost, in the ratio of the front lines of lots owned by them to the whole improved line."

Does this act repeal that portion of the above section of the special charter of the city of Evansville which authorizes the payment of one-third of the cost of such improvements out of the city treasury if the common council shall so determine? Did the legislature so intend, in the enactment of the statute? In the construction of statutes the prime object is to ascertain and carry out the purpose of the legislature in their enactment. To do this the words used in the instrument should be first considered in their literal and ordinary signification; but it is often necessary to inquire beyond such meaning of words.

In the case of City of Valparaiso v. Gardner, 97 Ind. 1, 6, S. C. 49 Amer. Rep. 416, in speaking of the rules of construction, this court said: "While it is our duty to yield to the words of the constitution, still, in determining what meaning they were intended to have, it is proper to consider the circumstances under which the provision was adopted, and the object it was intended to accomplish. Cooley, Const. Lim. (5th Ed.) 78, 79." In the case of Maxwell v. Collins, 8 Ind. 38, it was said: "It is a settled rule of interpretation of statutes, that the application of the words of a single statute may be enlarged or restrained to bring the operation of the act within the intention of the legislature, when violence will not be done, by such interpretation, to the language of the statute." In the case of Taylor v. Board, etc., 67 Ind. 383, 384, it was said: "It is a settled principle that, in construing a statute, the intention of the legislature must govern. To ascertain this intention we must look to the letter of the statute, to other statutes upon the same subject, * * * to their spirit and purpose, and harmonize what may appear to be conflicting so as to bring them into accord with a general and uniform system." In the case of Prather v. Jeffersonville, etc., R. Co., 52 Ind. 16, it was said: "So, in case of doubt or uncertainty, acts in pari materia passed before or after, and whether repealed or unrepealed, may be referred to in order to discern the intent of the legislature in the use of particular terms; and, within the same rule, and the reason of it, contemporaneous legislation, although not precisely in pari materia, may be referred to for the same purpose." And in the case of State v. Forkner, 70 Ind. 241, it was said: "The chief thing to be explored is the intention. This the judiciary is to seek in the history of legislation, in the objects contemplated, the evils